More than five years after the Deepwater Horizon explosion and the subsequent oil spill in the Gulf of Mexico, attorney Brent Coon and over 3,000 of his clients have not received a hearing on their legal claims against BP PLC.
Coon represents what may be the largest number of litigants who declined BP’s settlement offer in 2012 to resolve thousands of private claims that resulted from the 2010 Deepwater Horizon oil spill. As of June 30, 2015, the claims administrators overseeing the settlement said a total of $5 billion had been paid to 91,984 claimants.
Now Coon is seeking his day in court. Because his clients declined BP’s settlement offer, they have yet to receive any damage award offer from the oil giant. Instead, these opt-out claimants have been thrown into a sort of legal limbo, awaiting a instructions from U.S. District Judge Carl Barbier, who is overseeing the case against BP in the United States District Court for the Eastern District of Louisiana, on how to proceed.
Coon said altogether somewhere around 10,000 litigants opted out of the settlement and have yet to be told how their cases will proceed.
“Everybody [has] been sitting there for three or four years,” Coon said. “BP has no desire to settle any of them, because there is no pressure to, and the court hasn’t entertained any other pathway to resolution.”
In the past Barbier has consistently ruled against Coon on motions involving opt-out claimants, but Coon said the situation has now becoming dire and deserves to be addressed.
“Those guys are unfortunately sitting there. A lot of the business owners couldn’t outlast it, they were starving and couldn’t get any recourse and some of them went under,” he said. “Some of these folks are getting old, five years later. Some of them you lose — some of these people die off.”
But Barbier may not be the only obstacle to moving the opt-out cases. Coon said the Plaintiffs’ Steering Committee (PSC), a group of 17 trial lawyers overseeing the settlement, is still angry that he opposed the 2012 settlement. Moreover, he said, the opt-out claimants, unlike members of the settlement class, pay no fees to the PSC members.
The PSC members already stand to split a minimum of $600 million in fees for overseeing the settlement.
“[The PSC was] personally mad at us because I put their $600 million settlement bill at risk,” Coon said.
Coon said his claimants had good reason to opt-out of the class settlement the PSC struck with BP. He said his firm ran litigation test case scenarios on 1,000 claims based on information they were given and found damage awards were likely to be far higher if his clients took BP to court individually.
According to Coon, class action settlements, such as the Deepwater Horizon settlement, are often times inefficiently run and pay out large legal fees, sometimes to lawyers who do not represent any claimants, that minimize the settlements of individual class members.
“They beat most of the plaintiffs to death with paper,” Coon said.
In addition, Coon said the PSC has willfully ignored opt-out claimants for the past several years while several other claimants who are part of the settlement class action are given precedence.
“I think they are basically looking at it as trying to resolve big blocks of cases and saying if you chose not to participate in these deals for whatever reason you’ll just have to go to the back of the line,” he said.
Due to inaction of the PSC and the court on behalf of opt-out claimants, Coon has requested the claims be removed from federal court so they can be tried separately in state courts.
Coon said allowing such an alternative pathway would allow his clients, as well as the roughly 7,000 other opt-outs, some relief.
In any case, Coon said so much time has passed that his clients have suffered not only from the oil spill, but from a lack of the due process to which they are entitled.
“They won’t have their claims resolved in a timely manner,” Coon said. “It has already been over five years. If it does happen you are still probably looking at a year or two down the road before things develop enough to really resolve any significant numbers of those cases.”
That is why Coon has encouraged the court to allow the cases to be tried separately in state courts and beyond the reach of the PSC.